Chrisanthis v. Cason et al

Filing 44

ORDER RE BRIEFING AND HEARING ON MOTION TO DISMISS (whalc2, COURT STAFF) (Filed on 10/22/2008)

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1 2 3 4 5 6 7 8 9 10 ANTHONY CHRISANTHIS, Plaintiff, v. DR. BRIAN CASON, IRVING SPIVEY, and DOES 1 to 10, Defendants. / ORDER RE BRIEFING AND HEARING ON MOTION TO DISMISS No. C 08-02472 WHA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On August 4, 2008, defendants filed a "Motion to Dismiss or, in the Alternative, for Summary Judgment" (Dkt. No. 15). Plaintiff submitted no opposition. On August 22, 2008, defendants filed a reply and notice of non-receipt of opposition (Dkt. No. 24). Upon a request by plaintiff, the Court granted plaintiff leave to file a late response. Instead of filing an opposition, plaintiff filed a First Amended Complaint, as plaintiff was entitled to do as a matter of course. Fed. R. Civ. P. 15(a)(1)(A). The Court re-set the briefing schedule for defendants' motion to dismiss, if defendants were to re-notice it, and set a new hearing date for the motion. Defendants noticed a renewed motion to dismiss; plaintiff filed a request for a continuance of the new hearing because plaintiff's counsel had a conflict with prisoner cases counsel had previously been assigned by the State of California. The Court accommodated plaintiff and granted the requested continuance, and rescheduled the hearing on the motion for October 30. Plaintiff's opposition was due October 9. Plaintiff failed to submit a timely opposition. On October 10, defendants filed a notice of non-receipt of opposition requesting 1 2 3 4 5 6 7 8 9 10 dismissal of the case, inter alia, because defendants' motion was unopposed and plaintiff has failed to prosecute the case. Later that day, plaintiff filed its opposition. The Court filed an order to show cause for the late response (Dkt. No. 42). Plaintiff responded to the order to show cause, and plaintiff indicated that the delay was a result of a calendaring error. The hearing is now in one week and defendant is left in the untenable position of being uncertain of the status of plaintiff's opposition and the need for a reply brief. The October 30 hearing is therefore VACATED and RESCHEDULED FOR NOVEMBER 6, 2008. Defendants shall have until OCTOBER 30 to file any reply brief it may wish to file. United States District Court 11 For the Northern District of California IT IS SO ORDERED. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Dated: October 22, 2008 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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